Mcedisi Maphisa, a representative of the IFP and the Deputy Mayor of AbaQulusi has been charged with sexual assault, indecent exposure of genitals and compelling a person to witness masturbation. It is reported that on 12 October 2017 he gave a woman a lift from Ulundi to Vryheid and stopped along the way to demand sex from her. When she refused, he proceeded both to masturbate in front of her and coerce her into touching his penis. Maphisa has been released on bail of R3 000 and will appear again in the Vryheid Magistrate’s court on 17 January 2018.

Inaction by the IFP for IFP member charged with serious sexual offences

Media reports indicate that the IFP will not act on the matter until after the criminal trial. IFP spokesperson Blessed Gwala is on record stating that the party will rely on the legal system to deal with the matter and will allow the law to take its course before embarking on any action. While the IFP Women’s Brigade has noted their ‘grave concern’ over the serious allegations, reports indicate that they too are under the impression that the party is only obliged to act once criminal justice processes have been concluded.

“This is a common and mistaken position to take,” said Sam Waterhouse of the Women and Democracy Initiative. “Legally and morally, parties should proceed with internal disciplinary hearings irrespective of a criminal charge being laid and irrespective of the status or outcome of a criminal case. Our criminal law is probably the highest level of accountability, but it is by no means the only one. Employers and political parties can and must also exact accountability of their staff and members through internal processes.”

Policy gap and failure to implement IFP Constitution

Sexual misconduct is not included among the 20 offences against the party listed in the IFP’s Constitution – although public drunkenness is. “In terms of the way the section on disciplinary rules is currently drafted, the only offence that an harasser can be charged with is bringing the party into disrepute” says gender violence specialist Lisa Vetten.

However, the IFP Constitution clearly requires that any member charged with a criminal act must have their privileges of membership automatically suspended before the matter is dealt with by the National Disciplinary Committee. Sanja Bornman from LHR points out: “There are criminal charges against Maphisa. Why has the IFP leadership chosen to ignore its Constitution on this issue? This suggests that the IFP places a low priority on sexual violence.”

Code of Conduct for municipal councillors does not address sexual harassment

The Code of Conduct for municipal councillors (and deputy mayors) does not specifically list sexual violence as an offence. However, the code can be used to institute internal disciplinary processes against a councillor accused of sexual misconduct through the clause that requires councillors not to act in a manner that compromises the credibility and integrity of a municipality. There is no indication that the municipality or local council intends taking action against Maphisa either.

The IFP and AbaQulusi Municipal Council must act:

The IFP must uphold its own Constitution and immediately suspend Maphisa pending internal disciplinary processes.

The AbaQulusi Municipal Council must institute disciplinary processes.

The failure to specify sexual harassment in the Code of Conduct for local councillors must be addressed.

The IFP must develop policy and procedures specific to addressing all forms of sexual harassment and abuse.

The IFP Constitution’s section on Disciplinary Procedure Rules identifies 20 offences against the party, which include drunkenness at party meetings and public events, and fraudulent acts. The Rules make no reference to sexual misconduct in any form. The most relevant offence that could be used in such cases is: “acting in a manner likely to bring the name of the Party into disrepute, ridicule and/or contempt.”

Importantly the IFP Constitution states that:

“Any member of the Party charged with a criminal act or accused of fraudulent behaviour or profiteering shall have the privileges of his/her membership automatically suspended until such time as the National Disciplinary Committee has dealt with the matter and laid its recommendations before the National Council.” (Article 27, Chapter 11)

Local Government and Municipal Systems Act, 32 of 2000

The Code of Conduct for municipal councillors does not list sexual harassment or violence as offences, but does state that councillors must act in the best interests of the municipality and in such a way that the credibility and integrity of the municipality are not compromised.

CRIMINAL CASES AND INTERNAL DISCIPLINARY ACTION

Criminal trials and disciplinary actions are separate processes, with different purposes and levels of proof needed. This is why withdrawal of charges, or an acquittal in a criminal court does not always mean an incident did not happen. It means that the state could not prove beyond a reasonable doubt that it happened. The purpose of an internal disciplinary process, in most cases, is to maintain behavioural standards and create a safe working environment – which employers are required by law to do. The onus of proof is lower in internal disciplinary processes than it is in criminal trials, in these processes the case must be proved on a balance of probabilities – so they look at what is more probable. Internal disciplinary processes can and should run at the same time that a criminal trial is running. They also can and should be run, when the allegations constitute misconduct, even when there is no criminal case.

About the #NotOurLeaders campaign

During this year’s 16 Days of Activism, the Women and Democracy Initiative (WDI) of the Dullah Omar Institute at the University of the Western Cape, Lawyers for Human Rights (LHR), and gender violence specialist, Lisa Vetten, turn the spotlight on political representatives accused of sexual violence and the practices that protect and enable their sexual misconduct and abuse. By contrasting the range of incidents reported with parties’ inconsistent – even non-existent – responses, the campaign aims to demonstrate the chasm between political-speak and political actions on sexual violence.

The campaign emphasises the need for strong political leadership by all political parties and representatives in tackling the pervasive problem of sexual violence in South Africa.